Постановление Европейского суда по правам человека от 11.06.2009 «Дело Халитова и другие (Khalitova and others) против России» [англ.]

he inactivity of the investigators to higher prosecutors' offices or to lodge civil claims for damages, which they had failed to do.
84. The applicants contested that objection. They stated that the criminal investigation had proved to be ineffective. Referring to the other cases concerning similar crimes reviewed by the Court, they alleged that the existence of an administrative practice of non-investigation of crimes committed by State servicemen in the Chechen Republic rendered any potentially effective remedies inadequate and illusory in their case.

B. The Court's assessment

85. The Court reiterates that the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and further that any procedural means that might prevent a breach of the Convention should have been used. However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Aksoy v. Turkey, 18 December 1996, §§ 51 - 52, Reports of Judgments and Decisions 1996-VI, and Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, No. 41964/98, § 64, 27 June 2006).
86. It is incumbent on the respondent Government claiming non-exhaustion to indicate to the Court with sufficient clarity the remedies to which the applicants have not had recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see Cennet Ayhan and Mehmet Salih Ayhan, cited above, § 65).
87. The Court notes that the Russian legal system provides in principle two avenues of recourse for victims of illegal and criminal acts attributable to the State or its agents, namely civil and criminal remedies.
88. As regards a civil action to obtain redress for damage sustained through alleged illegal acts or unlawful conduct on the part of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention. A civil court is unable to pursue any independent investigation and is incapable, without the benefit of the conclusions of a criminal investigation, of making any meaningful findings regarding the identity of the perpetrators of fatal assaults or disappearances, still less of establishing their responsibility (see Khashiyev and Akayeva v. Russia, Nos. 57942/00 and 57945/00, §§ 119 - 21, 24 February 2005). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies.
89. As regards criminal law remedies provided for by the Russian legal system, the Court observes that the applicants complained to the law enforcement agencies immediately after the disappearance of Amir Magomedov, Ali Uspayev, Aslan Dokayev and Rustam Achkhanov. The investigation into the murder of Aslan Dokayev and Rustam Achkhanov has been pending since 18 July 2001, while the investigation into the kidnapping of Amir Magomedov and Ali Uspayev has been under way since 3 November 2004. The applicants and the Government dispute the effectiveness of the investigation into the murder and kidnapping.



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